2. 52 Institutionalised Arbitrariness The appointment process for FT members is opaque, with no fixed tenure guaranteed. Advertisements by the Gauhati High Court,127 and notifications from the Assam Government’s Political Department specify terms of one or two years, varying by executive whim, and extendable at the state’s discretion.128 This tenure is governed by no legislation or by-laws and depends entirely on executive whim despite being an “essential legislative function.”129 Moreover, it is violative of the Supreme Court’s judgments holding that a tenure of less than 5 years threatens to compromises the quality of adjudication by tribunals.130 The qualifications for FT members have progressively weakened. In 2011, only retired judicial officers from the Assam Judicial Service—experienced in procedural law—were eligible. They could serve until age 67, with salaries based on last drawn pay plus allowances. This ensured appointments of individuals with judicial expertise. By 2015, eligibility expanded to include advocates with at least 10 years of practice, lowering the standard. Appointments became two-year contracts with fixed monthly pay, enabling lawyers without judicial experience to decide critical citizenship matters. The 2019 revisions diluted requirements further: minimum practice dropped to 7 years, minimum age to 35, and appointments became more flexible, allowing less experienced candidates to adjudicate complex citizenship issues, thereby compromising the quality of justice. A Gauhati High Court notification added criteria of “fair knowledge of the official language of Assam” and “Assam’s historical background giving rise to foreigner’s issues.”131 Yet, no requirement exists for expertise in immigration or citizenship law. Under another notification,132 the selection process consists of a 100-mark interview overseen by a Gauhati High Court committee, but transparency is lacking on how candidates are scored or evaluated within these criteria. 127 128 129 130 131 132 133 134 Registrar (Judicial), Gauhati High Court ‘Advertisement for Filling Up Posts of Members of Foreigners Tribunal in the State of Assam’ (2 April 2015); Registrar (Judicial), Gauhati High Court ‘Notification No. HC.XXXVII-13/2017/2687/R.Cell’ (21 June 2017); Registrar General, Gauhati High Court ‘Notification No. HC.XXXVII-22/2019/442/R.Cell’ (10 June 2019). Government of Assam, Political (B) Department ‘Terms and condition for appointment of Judicial Officer as Member, Foreigners Tribunals, Assam’ (25 May 2011) No. PLB.163/2010/181; Government of Assam, Political (B) Department, ‘Terms and Conditions for appointment of Advocates and Member, Foreigners Tribunals, Assam’ (29 July 2015) No. PLB.163/2010/229; Government of Assam, Political (B) Department, ‘Terms and Conditions for appointment of retired Civil Servants as Member, Foreigners Tribunals, Assam’ (6 June 2019) No. PLB.136/2019/13; Government of Assam, Political (B) Department, ‘Terms and Conditions for appointment of Advocates as Member, Foreigners Tribunals, Assam’ (6 June 2019) No. PLB.136/2019/14. Rojer Mathew (n 111) [347], [348]. Madras Bar Association v. Union of India (“MBA III”) (2021) 7 SCC 369 [39], [40], [60.4]; Rojer Mathew (n 111) [171]. Registrar General, Gauhati High Court ‘Notification No. HC.XXXVII-22/2019/442/R.Cell’ (10 June 2019). Registrar General, Gauhati High Court ‘Notification No. HC.XXXVII-22/2019/502/R.Cell’ (5 July 2019). Ashim Kumar Baruah v. State of Assam Writ Petition (Civil)) 4478/2017 (Gauhati High Court, 22 December 2017). Response by Minister of Home Department, Unstarred Question No 159, Assam Legislative Assembly (21 March 2022); Government of Assam, Judicial Department ‘Assessment report of opinions of existing 100 nos. of Foreigners Tribunals Members’ (14 July 2021) No. JDJ.187/2021/10.